This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

55281 

Vol. 71, No. 184 

Friday, September 22, 2006 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 923 

[Docket No. FV06–923–2 FIR] 

Sweet Cherries Grown in Designated 

Counties in Washington; Decreased 

Assessment Rate 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: The Department of 

Agriculture (USDA) is adopting, as a 

final rule, without change, an interim 

final rule which decreased the 

assessment rate established for the 

Washington Cherry Marketing 

Committee (Committee) for the 2006– 

2007 and subsequent fiscal periods from 

$0.75 to $0.50 per ton for Washington 

sweet cherries handled. The Committee 

locally administers the marketing order 

regulating the handling of sweet 

cherries grown in designated counties in 

Washington. Assessments upon sweet 

cherry handlers are used by the 

Committee to fund reasonable and 

necessary expenses of the program. The 

fiscal period begins April 1 and ends 

March 31. The assessment rate will 

remain in effect indefinitely unless 

modified, suspended or terminated. 

DATES: Effective Date: October 23, 2006. 

FOR FURTHER INFORMATION CONTACT: 

Robert J. Curry or Gary D. Olson, 

Northwest Marketing Field Office, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 1220 SW Third Avenue, 

Suite 385, Portland, OR 97204; 

telephone number (503) 326–2724, fax 

number (503) 326–7440, or e-mail 

address Robert.Curry@usda.gov or 

GaryD.Olson@usda.gov. 

Small businesses may request 

information on complying with this 

regulation by contacting Jay Guerber, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 1400 Independence 

Avenue, SW., STOP 0237, Washington, 

DC 20250–0237; telephone number 

(202) 720–2491, fax number (202) 720– 

8938, or 

e-mail: Jay.Guerber@usda.gov. 

SUPPLEMENTARY INFORMATION: This rule 

is issued under Marketing Order No. 

923 (7 CFR part 923), as amended, 

regulating the handling of sweet 

cherries grown in designated counties in 

Washington, hereinafter referred to as 

the ‘‘order.’’ The order is effective under 

the Agricultural Marketing Agreement 

Act of 1937, as amended (7 U.S.C. 601– 

674), hereinafter referred to as the 

‘‘Act.’’ 

USDA is issuing this rule in 

conformance with Executive Order 

12866. 

This rule has been reviewed under 

Executive Order 12988, Civil Justice 

Reform. Under the marketing order now 

in effect, cherry handlers in designated 

counties in Washington are subject to 

assessments. Funds to administer the 

order are derived from such 

assessments. It is intended that the 

assessment rate as issued herein will be 

applicable to all assessable Washington 

sweet cherries beginning April 1, 2006, 

and continue until amended, 

suspended, or terminated. This rule will 

not preempt any State or local laws, 

regulations, or policies, unless they 

present an irreconcilable conflict with 

this rule. 

The Act provides that administrative 

proceedings must be exhausted before 

parties may file suit in court. Under 

section 608c(15)(A) of the Act, any 

handler subject to an order may file 

with USDA a petition stating that the 

order, any provision of the order, or any 

obligation imposed in connection with 

the order is not in accordance with law 

and request a modification of the order 

or to be exempted therefrom. Such 

handler is afforded the opportunity for 

a hearing on the petition. After the 

hearing USDA would rule on the 

petition. The Act provides that the 

district court of the United States in any 

district in which the handler is an 

inhabitant, or has his or her principal 

place of business, has jurisdiction to 

review USDA’s ruling on the petition, 

provided an action is filed not later than 

20 days after the date of the entry of the 

ruling. 

This rule continues in effect the 

action that decreased the assessment 

rate established for the Committee for 

the 2006–2007 and subsequent fiscal 

periods from $0.75 to $0.50 per ton for 

Washington sweet cherries handled 

under the order. 

The order provides authority for the 

Committee, with the approval of USDA, 

to formulate an annual budget of 

expense and collect assessments from 

handlers to administer the program. The 

members of the Committee are 

producers and handlers of sweet 

cherries in designated counties in 

Washington. They are familiar with the 

Committee’s needs and with the costs 

for goods and services in their local area 

and are thus in a position to formulate 

an appropriate budget and assessment 

rate. The assessment rate is formulated 

and discussed at a public meeting. All 

directly affected persons have an 

opportunity to participate and provide 

input. 

For the 2004–2005 and subsequent 

fiscal periods, the Committee 

recommended, and the USDA approved, 

an assessment rate of $0.75 per ton of 

sweet cherries handled. This rate 

continued in effect until modified 

herein based on the recommendation 

and supporting information submitted 

by the Committee. 

The Committee met on May 3, 2006, 

and unanimously recommended 2006– 

2007 expenditures of $49,800 and a 

decreased assessment rate of $0.50 per 

ton of cherries. In comparison, last 

year’s budgeted expenditures were 

$72,297. The assessment rate of $0.50 is 

$0.25 lower than the rate previously in 

effect. Due to an anticipated decrease in 

operating expenses this year, the 

Committee recommended the 

assessment rate decrease to maintain the 

level of income near the level of 

expenses. 

The assessment rate recommended by 

the Committee was derived by dividing 

anticipated expenses by expected 

shipments of Washington sweet 

cherries. Applying the $0.50 per ton rate 

of assessment to the Committee’s 

110,000 ton crop estimate should 

provide $55,000 in assessment income. 

Thus, income derived from handler 

assessments will be adequate to cover 

the recommended 2006–2007 budget of 

$49,800. 

The Committee’s budget of 

expenditures for the 2006–2007 period 


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55282 Federal Register / Vol. 71, No. 184 / Friday, September 22, 2006 / Rules and Regulations 

reflect a significant reduction in overall 

cost from previous years. This occurred, 

in part, because the Committee hired an 

outside management services agency to 

more efficiently handle the Committee’s 

administrative matters. Major expenses 

recommended by the Committee for the 

2006–2007 year include administration 

and data management fees totaling 

$25,000, Committee expenses of $16,200 

(which includes travel, accounting and 

compliance), and office expenses—

including bonds, insurance, telephone, 

office equipment and supplies—of 

$7,100. 

The assessment rate established in 

this rule will continue in effect 

indefinitely unless modified, 

suspended, or terminated by USDA 

upon recommendation and information 

submitted by the Committee or other 

available information. 

Although this assessment rate is 

effective for an indefinite period, the 

Committee will continue to meet prior 

to or during each fiscal period to 

recommend a budget of expenses and 

consider recommendations for 

modification of the assessment rate. The 

dates and times of the Committee’s 

meetings are available from the 

Committee or USDA. The Committee’s 

meetings are open to the public and 

interested persons may express their 

views at these meetings. USDA will 

evaluate the Committee’s 

recommendations and other available 

information to determine whether 

modification of the assessment rate is 

needed. Further rulemaking will be 

undertaken as necessary. The 

Committee’s 2006–2007 budget has been 

reviewed and approved by USDA; those 

for subsequent fiscal periods will also 

be reviewed and, as appropriate, 

approved by USDA. 

Final Regulatory Flexibility Analysis 

Pursuant to requirements set forth in 

the Regulatory Flexibility Act (RFA), the 

Agricultural Marketing Service (AMS) 

has considered the economic impact of 

this rule on small entities. Accordingly, 

AMS has prepared this final regulatory 

flexibility analysis. 

The purpose of the RFA is to fit 

regulatory actions to the scale of 

business subject to such actions in order 

that small businesses will not be unduly 

or disproportionately burdened. 

Marketing orders issued pursuant to the 

Act, and the rules issued thereunder, are 

unique in that they are brought about 

through group action of essentially 

small entities acting on their own 

behalf. Thus, both statutes have small 

entity orientation and compatibility. 

There are approximately 1,500 cherry 

producers within the regulated 

production area and approximately 53 

regulated handlers. Small agricultural 

producers are defined by the Small 

Business Administration (13 CFR 

121.201) as those having annual receipts 

of less than $750,000, and small 

agricultural service firms are defined as 

those whose annual receipts are less 

than $6,500,000. 

The Washington Agricultural 

Statistics Service prepared a 

preliminary report for the 2005 shipping 

season showing that the total 113,000 

ton fresh market sweet cherry utilization 

sold for an average of $2,830 per ton. 

Based on 1,500 producers in the 

production area, the average producer 

revenue from the sale of sweet cherries 

in 2005 is estimated at approximately 

$213,200 per year. In addition, the 

Committee reports that most of the 

industry’s 53 handlers would have each 

averaged gross receipts of less than 

$6,500,000 from the sale of fresh sweet 

cherries last season. Thus, the majority 

of producers and handlers of 

Washington sweet cherries may be 

classified as small entities. 

This rule continues in effect the 

action that decreased the assessment 

rate established for the Committee and 

collected from handlers for the 2006–

2007 and subsequent fiscal periods from 

$0.75 to $0.50 per ton for sweet cherries. 

The Committee unanimously 

recommended 2006–2007 expenditures 

of $49,800. With the 2006–2007 crop 

estimate of 110,000 tons for fresh sweet 

cherries, the Committee anticipates 

assessment income of $55,000. 

The Committee discussed alternatives 

to this rule, including alternative 

expenditure levels. Lower assessment 

rates were considered, but not 

recommended because of the 

uncertainty of the crop size estimate. 

A review of historical information and 

preliminary information pertaining to 

the upcoming crop year indicates that 

the producer price for the 2006–2007 

season could average about $2,830 per 

ton for fresh Washington sweet cherries. 

Therefore, the estimated assessment 

revenue for the 2006–2007 fiscal period 

as a percentage of total producer 

revenue is 0.018 percent for Washington 

sweet cherries. 

This rule continues in effect the 

action that decreased the assessment 

obligation imposed on handlers. 

Assessments are applied uniformly on 

all handlers, and some of the costs may 

be passed on to producers. However, 

decreasing the assessment rate reduces 

the burden on handlers, and may reduce 

the burden on producers. 

In addition, the Committee’s meeting 

was widely publicized throughout the 

Washington sweet cherry industry and 

all interested persons were invited to 

attend and participate in Committee 

deliberations on all issues. Like all 

Committee meetings, the May 3, 2006, 

meeting was a public meeting and all 

entities, both large and small, were able 

to express views on the issues. 

This action imposes no additional 

reporting or recordkeeping requirements 

on either small or large Washington 

sweet cherry handlers. As with all 

Federal marketing order programs, 

reports and forms are periodically 

reviewed to reduce information 

requirements and duplication by 

industry and public sector agencies. 

AMS is committed to complying with 

the E-Government Act, to promote the 

use of the Internet and other 

information technologies to provide 

increased opportunities for citizen 

access to Government information and 

services, and for other purposes. 

USDA has not identified any relevant 

Federal rules that duplicate, overlap, or 

conflict with this rule. 

An interim final rule regarding this 

action was published in the Federal 

Register on June 19, 2006 (71 FR 35145). 

Copies of that rule were made available 

to handlers and other interested parties 

by the Committee. The interim final rule 

was also made available through the 

Internet by USDA and the Office of the 

Federal Register. A 60-day comment 

period was provided for interested 

persons to respond to the interim final 

rule. The comment period ended on 

August 18, 2006, and no comments were 

received. 

A small business guide on complying 

with fruit, vegetable, and specialty crop 

marketing agreements and orders may 

be viewed at: http://www.ams.usda.gov/ 

fv/moab.html. Any questions about the 

compliance guide should be sent to Jay 

Guerber at the previously mentioned 

address in the FOR FURTHER INFORMATION

CONTACT section. 

After consideration of all relevant 

material presented, including the 

information and recommendation 

submitted by the Committee and other 

available information, it is hereby found 

that this rule, as hereinafter set forth, 

will tend to effectuate the declared 

policy of the Act. 

List of Subjects in 7 CFR Part 923 

Cherries, Marketing agreements, 

Reporting and recordkeeping 

requirements. 

PART 923—SWEET CHERRIES 

GROWN IN DESIGNATED COUNTIES 

IN WASHINGTON 

■ Accordingly, the interim final rule 

amending 7 CFR part 923 which was 


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Federal Register / Vol. 71, No. 184 / Friday, September 22, 2006 / Rules and Regulations 55283 

published at 71 FR 35145 on June 19, 

2006, is adopted as a final rule without 

change. 

Dated: September 15, 2006. 

Lloyd C. Day, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. 06–7866 Filed 9–21–06; 8:45 am] 

BILLING CODE 3410–02–P 

RAILROAD RETIREMENT BOARD 

20 CFR Parts 260 and 320 

RIN 3220–AB59 

Requests for Reconsideration and 

Appeals Within the Board 

AGENCY: Railroad Retirement Board. 

ACTION: Final rule. 

SUMMARY: The Railroad Retirement 

Board (Board) amends its regulations to 

include video teleconferencing as an 

option for hearings of appeals under the 

Railroad Retirement Act and Railroad 

Unemployment Insurance Act. The 

Board’s hearings officers will determine 

if a hearing should be scheduled using 

this option, rather than a telephone 

conference call hearing or an in person 

hearing. 

DATES: Effective Date: This regulation 

will be effective September 22, 2006. 

ADDRESSES: Beatrice Ezerski, Secretary 

to the Board, Railroad Retirement Board, 

844 Rush Street, Chicago, Illinois 60611. 

FOR FURTHER INFORMATION CONTACT: 

Marguerite P. Dadabo, Assistant General 

Counsel, Railroad Retirement Board, 

844 Rush Street, Chicago, Illinois 60611, 

(312) 751–4945, TDD (312) 751–4701. 

SUPPLEMENTARY INFORMATION: Part 260 of 

the Board’s regulations deals generally 

with administrative review of denials of 

claims or requests for waiver of recovery 

of overpayments under the Railroad 

Retirement Act (RRA). Part 320 deals 

with the same matters under the 

Railroad Unemployment Insurance Act 

(RUIA). The Board amends these parts 

to state that, at the discretion of the 

hearings officer, hearings held during 

the appeal process may be conducted in 

person, by telephone conference call, or 

by video teleconferencing. Previously, 

the regulations only allowed for 

hearings to be held in person or by 

telephone conference call. 

Specifically, the Board amends 

§§ 260.5(i) and 320.22 to state that a 

proposed hearing may be held in 

person, by telephone conference call, or 

by video teleconferencing. These 

sections also state that if an individual 

objects to having a hearing by video 

teleconferencing, the hearings officer 

will find the individual had good cause 

for objecting to the time or place of the 

hearing and will reschedule the 

individual for either a telephone or an 

in person hearing for the appeal. The 

regulation also amends §§ 260.5(1) and 

320.25 to state that the hearings officer 

determines whether a hearing is 

scheduled for a telephone conference 

call, video teleconferencing, or in 

person. 

The Board published the proposed 

rule on December 9, 2005 (70 FR 73175) 

and invited comments by February 7, 

2006. No comments were received. 

Accordingly, the proposed rule is being 

published as a final rule without 

change. 

The Board, with the concurrence of 

the Office of Management and Budget, 

has determined that this is not a 

significant regulatory action under 

Executive Order 12866. Therefore, no 

regulatory impact analysis is required. 

There are no changes to the information 

collections associated with parts 260 

and 320. 

List of Subjects 

20 CFR Part 260 

Administrative practice and 

procedure, Claims, Railroad retirement, 

Reporting and recordkeeping 

requirements. 

20 CFR Part 320 

Administrative practice and 

procedure, Claims, Railroad 

unemployment insurance, Reporting 

and recordkeeping requirements. 

■ For the reasons set out in the 

preamble, the Railroad Retirement 

Board amends title 20, Chapter II, 

subchapter B, part 260 and subchapter 

C, part 320 of the Code of Federal 

Regulations as follows: 

PART 260—REQUESTS FOR 

RECONSIDERATION AND APPEALS 

WITHIN THE BOARD 

■ 1. The authority citation for part 260 

continues to read as follows: 

Authority: 45 U.S.C. 231f: 45 U.S.C. 231g; 

45 U.S.C. 355. 

■ 2. Revise paragraphs (i)(1), (i)(3) and 

(1) of § 260.5 to read as follows: 

§ 260.5 Appeal from a reconsideration 

decision. 

* * * * * 

(i) Conduct of an oral hearing. (1) In 

any case in which an oral hearing is to 

be held, the hearings officer shall 

schedule a time and place for the 

conduct of the hearing. At the discretion 

of the hearings officer, any hearing 

required under this part may be held in 

person, by telephone conference call, or 

by video teleconferencing as described 

in § 260.5(1). The hearing shall not be 

open to the public. The hearings officer 

shall promptly notify by mail the party 

or parties to the proceeding as to the 

time and place for the hearing. The 

notice shall include a statement of the 

specific issues involved in the case. The 

hearings officer shall make every effort 

to hold the hearing within 150 days 

after the date the appeal is filed. 

* * * * * 

(3) The hearings officer shall rule on 

any objection timely filed by a party 

under paragraph (i) of this section and 

shall notify the party of his or her ruling 

thereon. The hearings officer may for 

good cause shown, or upon his or her 

own motion, reschedule the time and/or 

place of the hearing. If an individual 

objects to having a hearing by video 

teleconferencing, the hearings officer 

will find the individual’s wish not to 

appear by video teleconferencing to be 

a good reason for changing the time or 

place of the scheduled hearing and will 

reschedule the hearing for a time or 

place where either a telephone 

conference call or an in person hearing 

will be held. The hearings officer may 

also limit or expand the issues to be 

resolved at the hearing. 

* * * * * 

(1) Hearing by telephone or video 

teleconferencing. As stated in paragraph 

(i)(1) of this section, at the discretion of 

the hearings officer, any hearing 

required under this part may be 

conducted in person, by telephone 

conference call, or by video 

teleconferencing. The hearings officer 

may determine the hearing should be 

conducted by telephone conference call 

or video teleconferencing if use of these 

methods would be more efficient than 

conducting an in person hearing and the 

hearings officer does not determine that 

there is a circumstance in the particular 

case preventing the use of these 

methodologies to conduct the hearing. 

* * * * * 

PART 320—INITIAL DETERMINATIONS 

UNDER THE RAILROAD 

UNEMPLOYMENT INSURANCE ACT 

AND REVIEWS OF AND APPEALS 

FROM SUCH DETERMINATIONS 

■ 3. The authority citation for part 320 

continues to read as follows: 

Authority: 45 U.S.C. 355 and 362(1). 

■ 4. Add a sentence to the beginning of 

paragraph (a) and revise paragraph (c) of 

§ 320.22 to read as follows: 


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